Promise of a post-illegal copy world. Part I: History of Intellectual Property

[ Thursday, 21 January 2010, TheBlackMan ]

Lots of Internet forum discussions with various people on the subject of computer piracyillegal copying and intellectual property were my inspiration for this article. Along with the discussions, a lot of inaccuracies and lacks in the image of reality presented to humanity by RIAA, MPAA, MAFIAA and other corporate lobbyists appeared. Because I hate lies and injustice, I decided not to tolerate the false propaganda and to write this article which is a finial of few years of thinking, mentioned discussions and arguments used by both sides of the barricade.

Translated from Polish by Kamil Zawadzki

1. Definitions.

Intellectual property and its theft is often spoken of in media lately, but how many of us actually think about intellectual property and its definition? According to English Wikipedia definition, “Intellectual property (IP) is a term referring to a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law.(…)”. Thanks to intellectual property law, “owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs.”. As we can see, it is a very wide definition.

Everything, that is created by a human mind and is unique in its own way, can be under protection. This way to understand it is not an exaggeration and stands not far from reality given by examples: magenta color registration by German T-Mobile brand, or so-called patent troll, that sued Internet for using technology, that supposedly was his invention.

Case no 1

So if everything can be protected under intellectual property law, even something simple and a trivial, it is logical that every small bit of that “property” is an intellectual property as well. Let’s consider an example, in which somebody actually patents the word “arse”. Since that very moment “arse” becomes an intellectual property of that person. Moreover, let’s assume that all combinations such as “ar”, “rs”, “se” etc, that the word “arse” consists of were already “invented” by somebody else, and they are his intellectual property. Actually, if we would really want to be consequent, the letters “a”, “r”, “s”, “e” are also somebody’s intellectual property. OK, but whose property are those letters? To whom do they belong to? Logical explanation should be be: They belong to those, who actually invented them. So… WHO did invent them?

Therefore…if society is both the author and owner of “a”, “r”, “s”, “e” letters and all combinations that the “arse” word consists of, how come an author of the “arse” word dares to claim to wholly own the word and demands protection the word from its illegal copying from the government? How can we estimate in what percent is he owner of the word?

The same analogy can be used to all sorts of intellectual property

  • Music: If Britney Spears owns her song, created it from the scratch, did she also created words, notes, the way to write notes, instruments, rhythm, dancing and singing? All these are intellectual properties owned by society.
  • Software: If programmers are the only ones who own their programs, do they own mathematical and physical laws, algorithms and all other elements that made software creation and compilation possible?
  • Films: If filmmakers are the only ones who own their films, do they own the idea of acting, movie with sound, music, audio and video recording on hard drives ? On no account. All of these are intellectual property that have been improved by human race for thousand of years.
  • Books: If writers and poets are the only ones who own their books, do they own digits, numbers, letters, words, literate styles or inspirations, that allowed the creation of these works ? Hell no, though all those elements are intellectual property, that nobody has taken into possession using monopoly.
  • Inventions: If an inventor/concept creator is the only one who owns an invention/concept, does he also own mathematical, physical, chemical and biological laws that his invention consists of ? Does the baker who patents a new kind of bread also own patents for flour, sponge, oven and concept stating that you can actually create food by boiling ground grain with water and some other ingredients although all the “patents” for those particular things belong to society and are public property?

It often happens, that people compare intellectual property theft to common theft (which is absurd, but we will get to that later). Let’s use the same, senseless weapon and use this comparison to the following example. The question is: Who is the rightful owner of a Mercedes — Mr John, who has all ownership acts for all the parts, that the Mercedes consist of, or rather Mr Bob, Mr. John’s mechanic, who unscrewed and screwed back wheels on John’s car but switched their places?

Conclusion no 1

From the logical point of view, something like “intellectual property” in practice should not exist, because it’s impossible to own something, that consist of other, smaller pieces owned by somebody else. All fragments of someone’s imagination consist of other, smaller fragments of somebody else’s imagination. The difference between fragments and the whole thing is that the most of the fragments are not protected by patents and copyrights, but are indeed public property. (public domain).

In that kind of understanding the matter of intellectual property, we can only own a small amount (<5%) of created intellectual property, because all that we create, invent, imagine, consist mostly of other’s people imagination and realizations.

2. Where did the protection of “intellectual property” come from?

Case no 2a: Copyrights

Today’s copyrights comes from 16th century English censorship organizations and it was suggested, designed and enforced by distributors and printers. 16th century was the century, when first proper printing machines were introduced. That resulted in real explosion of diverse creations, artists. Because of the inspirational character of the easiness and speed of copying works, authors could create more than ever. “Authors’ laws ” (copyrights) weren’t in danger despite there was no authors “protection” system. Creators manufactured a lot of content, which was very disturbing for English Government, because it was afraid of propagation of seditious contents. So the government founded “The London Company of Stationers”, that had monopoly for all English printings and additionally could destroy all works printed illegally.

This system had been working just fine for one and a half century, but at the turn of the 17th century English Government loosened the knots of censorship and wanted to end distributors monopoly to authors delight. Salesmen, at risk of being thrown out on the street, designed a new strategy: they claimed that authors “have no means to distribute their work”, so they need printing machines, distribution network, supplies investment, typographic sets etc – things that can only be provided by a distributor. They came up with distributive copyrights , that limited the copying of the subject of law with the possibility of selling the rights whoever was interested (accurately predicting the fact, that in most of the cases author is going to resell his rights to his publisher).

The system was devised by publishers for publishers as an extension of their censorship monopoly. In them days, it seemed absurd for authors to demand limitations to their work, because why would they want returning to censorship, from which they have just escaped ? Coming up with distributive copyrights was an incredibly devious move of the distributors, that allowed them to survive untouched for the next 300 years till today.

More information in terms of copyrights and its origins can be found in Karl Fogel’s“Surprising History of Copyright and The Promise of a Post-Copyright World”.

Conclusion no 2a

From the logical point of view, there is no grounds for distributive copyrights protection system, that is an censorship extension and a limitation for human mind works distribution, should exist. If authors created more before “intellectual property” protection was introduced and other people’s creations were just inspirations for acting, abolishing “protection” is not going to result in creativity decrease as it’s claimed by organizations that fights piracy illegal copying.

“Anti-piracy” law sets a legal monopoly that blocks natural flow of thoughts, ideas and creations of imagination which limit human creativity by definition, the same as every other monopoly. It should be repealed as soon as possible.

Case no 2b: patent law

Patent law, similarly to copyrights, was created to protect unique innovations of some individual from copying and using this innovations by others. So patent’s core slightly differs from copyrights. In opposition to copyrights, patent is a very old “invention” because it was first used 500 years BC in a Greek city Sybaris.

Typical arguments of patent law supporters are:

Producer’s argument no 1: If there was no patent law, people would not be eager to invent things

  • Counter argument no 1:If people hadn’t have motivation to invent new things, how come we have developed as civilizations for 10,000 years before the patent law was invented? Does the lack of patent law made inventing wheel, fire, bow or breeding cattle impossible ? No.
  • Counter argument no 2:Do solid evidence with a 90% probability, which indicates that creators wouldn’t published their inventions, if they were unable to get monopoly in order to gain profits exist ?
  • Counter argument no 3:If above was supposed to be true, should we assume that, without patent protection most of the inventors wouldn’t publish their creations at all ? If that were true, we would also have to assume, that most of the inventors are extreme egoists, and likelihood of this particular situation is really low.
  • Counter argument 4:As far as 3rd counter argument is concerned, If there have never been a patent law, would any of the inventors come up with the idea not to publish his inventions, because he would not get protection? The same as artists would not thought up an idea of copyrights and would still publish everything under free license, also Inventors would publish their inventions freely if it weren’t for distributors which created the protection system.

Producer’s argument no 2: Without patent law, it would not be profitable for corporations to spend millions of dollars on R&D departments.

  • Counter argument:Of course, the argument stating that, corporations would not have any motivation for spending millions of dollars on research without being sure that they gain monopoly, is theoretically correct. Corporations act only in their own, purely egoistic, interest – therefore investments that won’t bring 100% long-or-short-term return are pointless from their point of view.However conceptual failure of this kind of thinking is that, we presuppose that corporations have to take care of new technologies research and development. Meanwhile, if there was no patent law, some different business model would emerge, which surely would take into consideration the fact, the one corporation cannot afford to spend large amount of money on R&D. Universe hates emptiness. Maybe this model would rely on non-profit R&D foundations. Another example can be universities, that develop loads of projects every year.Also Wikipedia’sLinux’s kernel Apache’s server or self-retorted machineRepRap improvement paths and other projects under free license, that are developed without any corporate guidance, shows that this development model is not only possible, but also may be extremely efficient.Using this model, president/founder decides on the development path for the foundation and corporations may (but don’t have to) support it by dedicating their workers time or by donations. But the example of Linux kernel shows, that investing in this kind of a business model is quite profitable for corporations and investors. (Appendix 1appendix 2 (PDF)).

Producer’s argument no 3: Because of the factors mentioned in argument 1 and 2, patent law accelerates civilization development.

  • Counter argument no 1:By definition, Patent law creates market monopoly, that limits possibilities all subjects apart from, the one who owns the patent. Other subjects cannot freely use patented technology, cannot improve it or create products, that are based on it. These are facts. So, if logical is, that monopoly restricts all people and companies apart from one how is it possible to accelerate development by slowing it down?Let’s consider the following example of an experimental race: Let’s say we deploy 10 sport racing cars on a track, and order every driver to drive at 60mph average. After each lap, we measure the average speed of all cars in general. We don’t need a lot of calculations much to notice, that average speed of all cars will be 60mph which equals the average speed of every single car.Now, let’s put “patent” into the system. We tell only one driver to drive at 120mph. After the race finishes, average of all cars equals 66mph. It’s just slightly more than in the first case.Now, let’s remove the “patent law” and allow every driver drive at the speed of 120mph. It’s not really surprising, that after measuring the average speed of all cars in general the result is 120mph.

    Of course, this example shows only the problem of patent’s idea core, all numbers are made up and and their precision is minimal.

  • Counter argument no 2:Does any signs of monopoly on the free market is stimulating or mayberetaining to this market development? If one company gets monopoly for some critical technology and using it cuts out the competitors, will the customer gain or loose, will the prices soar or sink ? I think the answer to this question is generally known, so why would it be any different with legal patent monopoly? Is this some kind of a magic monopoly ?
  • Counter argument no 3:Does any sort of a real-life market example, in which monopoly or one company domination is more stimulating for market growth and development exist ? Did AT&T monopoly make calls cheaper or more accessible ? Does Russia’s monopoly for gas deliveries for Poland and Ukraine make these countries have more gas at a lower price than countries that don’t rely on one provider solely ? Nope — and this are just few examples that can be presented. So, If there aren’t any examples (or perhaps there are, but in marginal quantities) that prove monopoly to be more stimulating than open competition, what are the reasons to believe that it will be any different with legal monopolies created by patent laws?
  • Counter argument no 4:Mental example: would “locking” groundbreaking inventions such as fire, wheel or money for 1000 years (patent protection period) by a privileged group of people, that would demand enormous tributes for every case of usage of this technologies, be beneficial or disadvantageous for mankind?

Conclusion no 2b

Logically, patent system does not serve healthy competition or customers. It’s pathological and completely unjustified (or justified, but only by greediness and egoism of privileged individuals) legal creation, that creates corporate monopolies, selfish ways of using others’ accomplishments, slowes down natural mankind development that has had been doing just fine for tens of thousand years without any “intellectual property” protection or unnatural monopolies. Having no proof, that this system is beneficial, it should be completely liquidated or replaced by a better solution.

To be continued
(two parts pending:
- the losses caused by “piracy” (i)
- and the ethics of “piracy” (ii))
- stay tuned!)

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